HomeMy WebLinkAboutJANUARY 30, 2019 SIGN EASEMENT SIGN EASEMENT
THIS SIGN EASEMENT (the "Agreement") is made and entered into this 30th day of
January,2019,by and between the City of Jeffersonville,by and through its Board of Public Works
and Safety, an Indiana municipal corporation (the "Grantor"), who has a mailing address of 500
Indiana limited liability company("Hogan"),who has a mailing address of 9300 Shelbyville Road,
Suite 1300, Louisville, Kentucky 40222.
RECITALS
A. Grantor is the owner of that certain real property located at the intersection of 9th and Spring
Streets in the City of Jeffersonville, County of Clark, State of Indiana, that is more
particularly described on Exhibit A attached hereto and incorporated herein by this
reference (the "Easement Parcel").
B. Hogan is or will be the owner of that certain real property located north of 9th Street and
situated in the City of Jeffersonville, County of Clark, State of Indiana, that is more
particularly described on Exhibit B attached hereto and incorporated herein by this
reference (the "Lot 4").
C. Hogan desires to construct a monument sign on a portion of the Easement Parcel for
purposes of identifying the business on Lot 4 and the Additional Gateway Parcels.
D. Grantor now desires to convey to Hogan, its tenants, employees, invitees, vendors,
successors and assigns a sign easement on the Easement Parcel on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. Definitions. In addition to the terms defined in the recitals above and within the other
Sections of this Agreement, for purposes hereof:
1.1 The term "Common Area" shall mean those portions of the Easement Parcel that
are not a part of the Monument Sign or other structures related to such Monument
Sign from time to time located on the Easement Parcel, and which are either
unimproved, or are improved as (without limitation) landscaped areas, walkways,
sidewalks,curbing,paving, and other similar site improvements.
1.2 The term "Additional Gateway Parcels" shall mean Lots 1, 2, 3, 5, 6, and 7 as
depicted on the Jeffersonville Gateway Final Plat — Phase 1 prepared by Land
Design and Development, Inc. dated October 25, 2018, and recorded October 30,
2018, in Plat Book 17, Page 61, as Instrument No. 201819450 in the Recording
Office, and the Jeffersonville Gateway Final Plat — Phase 2 prepared by Land
Design and Development, Inc. dated October 25, 2018, and recorded October 30,
2018, in Plat Book 17, Page 62, as Instrument No. 201819451 in the Recording
Office.
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1.3 The term "Owner" or"Owners" shall mean, as the context may require or indicate,
the fee simple owner of Lot 4 and/or the fee simple owner of the Easement Parcel
and any and all successors or assigns of such persons as the owner or owners of fee
simple title to all or any portion of the real property covered by this Agreement,
whether by sale, assignment, inheritance, operation of law, trustee's sale,
fnrerinsure nr otherwise hut not inrluriinp,the hnlcirr of any lien nr encinnhrance
on such real property.
1.4 The term "Permittee" or "Permittees" shall mean, as the context may require or
indicate, (i) the tenant(s) or occupant(s) of Lot 4 and/or the Easement Parcel, (ii)
the respective employees, agents,contractors, customers, invitees and licensees of
(A) the Owner of Lot 4 and/or the Easement Parcel, and/or (B) such tenant(s) or
occupant(s) thereof, and (iii) if the Owner of Lot 4 grants, to the fee simple owner
of one or more of the Additional Gateway Parcels, a license to use the Monument
Sign, the fee simple owners, tenant(s) or occupant(s) of the Additional Gateway
Parcels, and the respective employees, agents,contractors,customers, invitees and
licensees of the same.
1.5 The term "Recording Office" shall mean the Office of the Recorder of Clark
County, Indiana.
1.6 The term "Tract" or "Tracts" shall mean each separately identified parcel of real
property now constituting a part of the real property subjected to this Agreement as
described on Exhibit A and Exhibit B; that is, the Easement Parcel and Lot 4,
respectively.
2. Easements.
2.I Grant of Monument Sign Easement in Favor of Lot 4. The Grantor, as Owner of
the Easement Parcel, hereby grants, establishes, covenants, and agrees that Lot 4, and all
present, and future Owners and Permittees of Lot 4, shall be benefited, and the Easement
Parcel, and all present and future Owners and Permittees of the Easement Parcel, shall be
burdened, by a perpetual easement for signage for Lot 4 and the Owners and Permittees of
Lot 4 (the "Monument Sign") and the maintenance, repair and replacement of such
Monument Sign in the approximate location on the Easement Parcel as shown on Exhibit
C (collectively,the "Monument Sign Easement"). The Owner of Lot 4 and such Owner's
Permittees shall have the right to enter upon and cross over the Easement Parcel as
reasonably necessary to access the Monument Sign Easement to install and remove sign
panels on the Monument Sign, at such Owner's sole cost and expense. The Lot 4 Owner
shall be responsible for maintaining the Monument Sign only and shall have no obligation
to maintain the Common Area of the Easement Parcel around the Monument Sign, which
Common Area maintenance shall be the obligation of the Owner of the Easement Parcel
pursuant to Section 4.2 hereof. The Owner and Permittees of the Easement Parcel shall
have no rights to use or install panels upon the Monument Sign. Notwithstanding anything
to the contrary in the foregoing, the Grantor also hereby acknowledges and agrees that the
Owner of Lot 4 may grant licenses for panels on the Monument Sign to the Owners of the
Additional Gateway Parcels, and if the Owner of Lot 4 grants such license(s) to one or
more Owners of any of the Additional Gateway Parcels, such Owners and their Permittees
may utilize the Monument Sign Easement.
2.2 Grant of Lighting Easement in Favor of Lot 4. The Grantor, as Owner of the
Easement Parcel, hereby grants, establishes, covenants, and agrees that Lot 4, and all
present and future Owners and Permittees of Lot 4, shall be benefited, and the Easement
Parcel, and all present and future Owners and Permittees of the Easement Parcel, shall be
burdened, by a perpetual easement under and across those parts of the Common Area on
the Easement Parcel far the. installation. mainternanr ' alteration remodel .'pair and
replacement of lighting and lighting fixtures,electrical conduits,lines or systems,and other
utility facilities necessary for the lighting of the Monument Sign located on the Easement
Parcel (collectively, the "Lighting Easement"); provided that the exact location of any
utilities shall be subject to the approval of the Owner of the Easement Parcel.
2.3 Restriction on Use of Easement Parcel. The Grantor shall allow no permanent
building, structures, trees or other improvements inconsistent with the use and enjoyment
of the Monument Sign Easement to be placed on, over or upon or permitted to encroach
upon or obstruct any portion of the Monument Sign Easement, and neither the Grantor nor
its successors and/or assigns shall use the Easement Parcel (i) for any purpose inconsistent
with the terms and provisions of this Agreement or (ii) in any way that adversely affects
the Monument Sign Easement granted herein.
2.4 Indemnification. The Owner of Lot 4 shall indemnify and hold the Owner of
the Easement Parcel harmless from and against all claims, liabilities and expenses
(including reasonable attorneys' fees) relating to accidents, injuries, loss, or damage of or
to any person or property arising from the grossly negligent, intentional or willful acts or
omissions of the Owner of Lot 4, its Permittees, or others acting on behalf of such Owner
in connection with the exercise of the rights pursuant to the Monument Sign Easement
granted herein.
3. Maintenance.
3.1 Signs and Lighting. The Owner of Lot 4 covenants to keep and maintain, at its
sole cost and expense, the Monument Sign in good order,condition and repair. The Owner
of Lot 4 also covenants to keep and maintain, at its sole cost and expense, any lighting,
lighting fixtures or related structures or facilities within the Lighting Easement in good
order,condition and repair.
3.2 Common Area on Easement Parcels. The Owner of the Easement Parcel covenants
at all times during the term hereof to operate and maintain (or cause to be operated and
maintained),at its sole cost and expense,all of the Common Area located on the Easement
Parcel in good order, condition and repair. Maintenance of such Common Area shall
include, without limitation, maintaining, repairing and replacing any and all walkways,
sidewalks, curbing, paving, and other similar site improvements on such Easement Parcel;
removing all papers,debris, and other refuse from such Easement Parcel; maintaining and
replacing landscaping including mowing of grass and weed-eating; and performing any
and all such other duties as are necessary to maintain such Common Area in a clean, safe
and orderly condition.
4. Insurance. Throughout the term of this Agreement, each Owner shall procure and
maintain general and/or comprehensive public liability and property damage insurance against
claims for personal injury (including contractual liability arising under the indemnity contained in
Section 2.5 above), death, or property damage occurring upon such Owner's Tract, with single
limit coverage of not less than an aggregate of Two Million Dollars ($2,000,000.00) including
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umbrella coverage, if any, and naming each other Owner (provided the Owner obtaining such
insurance has been supplied with the name of such other Owner in the event of a change thereof)
as additional insureds.
5. Taxes and Assessments. Each Owner shall pay or cause to be paid all taxes,
assessments, or charges of any type levied or made by any governmental body or agency with
id5lrettAuIts Tt1.f.
6. No Rights in Public; No Implied Easements.Nothing contained herein shall be construed
as creating any rights in the general public or as dedicating for public use any portion of the Tracts.
No easements, except those expressly set forth in Section 2 shall be implied by this Agreement.
7. Remedies and Enforcement.
7.1 All Legal and Equitable Remedies Available. In the event of a breach or
threatened breach by any Owner or its Permittees of any of the terms, covenants,
restrictions or conditions hereof, the other Owner(s) shall be entitled forthwith to full and
adequate relief by injunction and/or all such other available legal and equitable remedies
from the consequences of such breach, including payment of any amounts due and/or
specific performance.
7.2 Self-Help. In addition to all other remedies available at law or in equity, or as
otherwise stated in this Agreement,upon the failure of a defaulting Owner to cure a breach
of this Agreement within thirty (30) days following written notice thereof by another
Owner(unless, with respect to any such breach the nature of which cannot reasonably be
cured within such 30-day period, the defaulting Owner commences such cure within such
30-day period and thereafter diligently prosecutes such cure to completion), a non-
defaulting Owner shall have the right to perform such obligation contained in this
Agreement on behalf of such defaulting Owner and be reimbursed by such defaulting
Owner upon demand for the reasonable costs thereof, together with interest at the prime
rate published from time to time by The Wall Street Journal(its successors or assigns)plus
two percent (2%) (not to exceed the maximum rate of interest allowed by law).
Notwithstanding the foregoing, in the event of(i) an emergency and/or (ii) blockage or
material impairment of the easement rights,a non-defaulting Owner may immediately cure
the same and be reimbursed by the defaulting Owner upon demand for the reasonable cost
thereof, together with interest at the prime rate plus two percent (2%), as above described.
7.3 Lien Rights. Any claim for reimbursement described above, including interest as
aforesaid,shall constitute a lien(the "Assessment Lien") against the Tract of the defaulting
Owner in favor of the non-defaulting party until paid, effective upon the recording of a
notice of lien with respect thereto in the Recording Office; provided, however, that any
such Assessment Lien shall be subject and subordinate to(i)liens for taxes and other public
charges which by applicable law are expressly made superior, (ii) all liens, including
without limitation mortgage liens, recorded in the Recording Office prior to the date of
recordation of said notice of lien, and (iii) all leases entered into, whether or not recorded,
prior to the date of recordation of said notice of lien. Subject to the foregoing, all liens
recorded subsequent to the recordation of the notice of lien described herein shall be junior
and subordinate to the Assessment Lien. Upon the timely curing by the defaulting Owner
of any default for which a notice of lien was recorded, the party recording same shall record
an appropriate release of such notice of lien and Assessment Lien.
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7.4 Remedies Cumulative. The remedies specified herein shall be cumulative
and in addition to all other remedies permitted at law or in equity.
7.5 No Termination for Breach. Notwithstanding the foregoing to the contrary, no
breach hereunder shall entitle any Owner to cancel, rescind, or otherwise terminate this
Agreement. No breach hereunder shall defeat or render invalid the lien of any mortgage
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conditions and restrictions hereof shall be binding upon and effective against any Owner
of such Tract covered hereby whose title thereto is acquired by foreclosure, trustee's sale,
or otherwise.
7.6 Irreparable Harm. In the event of a violation or threat thereof of any of the
provisions of Sections 2 and/or 3 of this Agreement,each Owner agrees that such violation
or threat thereof shall cause the non-defaulting Owner and/or its Permittees to suffer
irreparable harm and that such non-defaulting Owner and its Permittees shall have no
adequate remedy at law. As a result, in the event of a violation or threat thereof of any of
the provisions of Sections 2 and/or 3 of this Agreement, the non-defaulting Owner, in
addition to all remedies available at law or otherwise under this Agreement, shall be
entitled to injunctive or other equitable relief to enjoin a violation or threat thereof of
Sections 2 and/or 3 of this Agreement.
8. Term. The Monument Sign Easement, as well as the other terms and conditions contained
in this Agreement, shall be effective commencing on the date of recordation of this Agreement in
the Recording Office and shall remain in full force and effect thereafter in perpetuity, unless this
Agreement is modified,amended,canceled or terminated by the written consent of all then record
Owners of the Tracts, in accordance with Section 9.2 hereof.
9. Miscellaneous.
9.1 Attorneys' Fees. In the event an Owner institutes any legal action or
proceeding for the enforcement of any right or obligation herein contained, the prevailing
party after a final adjudication shall be entitled to recover its costs and reasonable attorneys'
fees incurred in the preparation and prosecution of such action or proceeding, through all
appeals. In no event shall an Owner be responsible for any incidental, indirect,
consequential,special,punitive or exemplary damages, including but not limited to loss of
profit, that another Owner or a Permittee may incur pursuant to or in connection with this
Agreement, including pursuant to any indemnification obligations hereunder.
9.2 Amendment. The parties agree that the provisions of this Agreement may be
modified or amended, in whole or in part, or terminated,only by the written consent of all
record Owners of the Easement Parcel and Lot 4, evidenced by a document that has been
fully executed and acknowledged by all such record Owners and recorded in the Recording
Office.
9.3 Consents. Wherever in this Agreement the consent or approval of an Owner is
required,unless otherwise expressly provided herein,such consent or approval shall not be
unreasonably withheld or delayed. Any request for consent or approval shall: (i) be in
writing;(ii)specify the Section hereof which requires that such notice be given or that such
consent or approval be obtained; and (iii) be accompanied by such background data as is
reasonably necessary to make an informed decision thereon. The consent of an Owner
c
under this Agreement shall be deemed given if no response is provided to the request for
consent or approval within seven(7) business days of the request.
9.4 No Waiver. No waiver of any default of any obligation by any party bound by
this Agreement shall be implied from any omission by any other party so bound to take
any action with respect to such default. The waiver of any party of any breach or default
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or default. The failure of a party to insist upon strict performance of or strict adherence to
the terms of any provision of this Agreement or to exercise any right arising out of this
Agreement shall neither impair that provision or right nor constitute a waiver of that
provision or right, in whole or in part, in that instance or in any other instance.
9.5 Covenants to Run with Land. It is intended that each of the easements, covenants,
conditions, restrictions, rights and obligations set forth herein shall run with the land and
create equitable servitudes in favor of the real property benefited thereby, shall bind every
person or entity having any fee, leasehold or other interest therein and shall inure to the
benefit of the respective parties and their successors, assigns, heirs, and personal
representatives. The grantee of any Tract or any portion thereof, by acceptance of a deed
conveying title thereto or the execution of a contract for the purchase thereof,whether from
an original or subsequent Owner of such Tract,shall accept such deed or contract upon and
subject to each and all of the easements,covenants,conditions, restrictions and obligations
contained herein. By such acceptance, any such grantee shall for itself and its successors,
assigns, heirs, and personal representatives, covenant, consent, and agree to and with all
other Owners, to keep,observe,comply with, and perform the obligations and agreements
set forth herein with respect to the property so acquired by such grantee.
9.6 Severability. Each provision of this Agreement and the application thereof to any
Tract are hereby declared to be independent of and severable from the remainder of this
Agreement. If any provision contained herein shall be held to be invalid or to be
unenforceable or not to run with the land, such holding shall not affect the validity or
enforceability of the remainder of this Agreement. In the event the validity or
enforceability of any provision of this Agreement is held to be dependent upon the
existence of a specific legal description, the parties agree to promptly cause such legal
description to be prepared. Ownership of all Tracts by the same person or entity shall not
terminate this Agreement nor in any manner affect or impair the validity or enforceability
of this Agreement.
9.7 Time of Essence. Time is of the essence of this Agreement. In the event that
the time for the performance of an action required hereunder by or on behalf of any Owner
falls on a Saturday, Sunday, or federal legal holiday, such date shall be deemed postponed
until the next business day thereafter.
9.8 Notices. Notices or other communication hereunder shall be in writing and
shall be sent by certified or registered mail, return receipt requested, or by national
overnight courier company. Notice shall be deemed given (a) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery (or two (2)
days after deposit if 2-day delivery is specified), with written verification of receipt,or(b)
five(5)days after having been sent by registered or certified mail, return receipt requested,
postage prepaid. Each party may change from time to time their respective address for
to
notice hereunder by like notice to all other Owners. The initial notice addresses are set
forth in the preamble to this Agreement.
9.9 Governing Law. The laws of the state in which the Easement Parcel is located
shall govern the interpretation, validity, performance, and enforcement of this Agreement.
I 1.•4 •' .. - A . 1.1 I I • .1 • • • .Em
any other Owner(s), each Owner shall from time to time provide the requesting entity a
certificate binding upon such Owner stating: (a) to the best of such Owner's knowledge,
whether any party bound by this Agreement is in default or violation of this Agreement
and if so identifying such default or violation; and (b) that this Agreement is in full force
and effect and identifying any amendments to the Agreement as of the date of such
certificate.
9.11 Bankruptcy. In the event of any bankruptcy affecting any Owner or occupant of
any Tract, this Agreement shall, to the maximum extent permitted by law, be considered
an agreement that runs with the land and that is not rejectable, in whole or in part, by the
bankrupt person or entity.
9.12 Third Party Restrictions. No Permittee shall be deemed a third party beneficiary of
this Agreement and no Permittee's consent shall be required for any modification or
abrogation of this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
City of Jefferso N,' Ie,
an Indiana muni i al ,orporatiBy:
.'?
Name: Mike Moore
Title: Mayor
STATE OF INDIANA )
) SS
COUNTY OF CLARK )
The foregoing Agreement was subscribed, sworn to and acknowledged before me on
January 30th,2019,by Mike Moore as Mayor fo . - ity of Jeffersonville, an Indiana municipal
corporation,on behalf of same. 11111.411k,
I'
Notary Public
My Commission Expires: 2/912022
County of Residence: Clark
8
HOGAN HOLDINGS 59, LLC,
an Indiana limited liability company
By:
1
same: I lor
ana5er
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Agreement was subscribed, sworn to and acknowledged before me on
Ft.1 ft ar 20 t9 . by W. [rltvwt4. y% as
Akarastke of Hogan Holdings 59, LLC, an Indiana limited liability
company,on behalf of same.
Notary Public 4441 file'rt"
My Commission Expires: '1411-17.1
County of Residence: ftfctxJui
WESLEY MAZE
Notary Public-State at Large
KENTUCKY
My Commission Expires 07-17-2021
This Instrument Prepared By:
Edith Sommer
General Counsel
Hogan Real Estate
9300 Shelbyville Road Smite 13411
Louisville, Kentucky 40222
502) 426-1050
I affirm under penalties of perjury that I have taken reasonable care to redact each social security
number in this document unless required by law: Edith Sommer
EXHIBIT A
Legal Description of Easement Parcel
EASEMENT PARCEL:
1
David R. Blankenbeker,P.L.S. Howard R.Blankenbeker(1908-1974)
Rollyn H.Blankenbeker (1934-1994)
Blankenbeker & Son
Land Surveyors Inc., P.C.
Established 1945
618 E.Court Avenue (812)282-4183 phone P.O.Box 157
Jeffersonville,Indiana 47130 (812)282-4197 fax Jeffersonville,Indiana
47131-0157
5 February 2019
DESCRIPTION OF PROPOSED SIGN EASEMENT
Being a part of Ohio Avenue,Ninth Street,part of Lot 8 in Block 92,and part of Lot 9 in Block 91,all in
the City of Jeffersonville, Clark County, Indiana and being further described as follows:
Beginning at a steel pin on the southeast corner of Lot 1 in said Block 92; Thence N.85°32'19"W., along
the north Right-of-Way line of vacated Eighth Street(see Instrument 201518373), 117.56 feet to the southwest
corner of said Lot 1; Thence N.4°03'43"E., along the east Right-of-Way line of Ohio Avenue, (passing through
a railroad spike on the northwest corner of Lot 6 in said Block 92 at 282.04 feet)353.21 feet to THE TRUE
PLACE OF BEGINNING:
Thence N.85°16'30"W., 67.51 feet;
Thence N.73°56'05"E., 83.05 feet to the prolongation of the southwest Right-of-Way line of Spring
Street if extended northwesterly;
Thence S.31°32'17"E., along said extended Right-of-Way line and said Right-of-Way line(passing
through a drill hole in concrete on the northeast corner of Lot 8 in said Block 92 at 8.23 feet) 36.56 feet;
Thence N.85°16'30"W., 31.76 feet to THE TRUE PLACE OF BEGINNING.
Containing 1463 square feet and being subject to all legal highways and easements of record.
T:\DOCS\DESCRIPTIONS\23086.doc
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EXHIBIT B
Legal Description of Lot 4
LOT 4
Being all of Lot 4 as shown on the Jeffersonville Gateway Final Plat-- Phase 1, recorded on
October 30, 2018, in Plat Book 17, Page 61.as Instrument No. 20I 819450 in the Office of the
Recorder of Clark County, Indiana.
Being the same property conveyed to Hogan Holdings 59, LLC,by Deed dated February_,2019.
recorded as Instrument No. in the Office of the Recorder of Clark County.
Indiana.
EXHIBIT C
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